IN THE COURT OF APPEAL OF TANZANIA ATTABORA (CORAM: LUANDA, l.a. MMILLA, l.a., And MWARIJA, l.a.) CRIMINAL APPLICATION NO.1 OF 2010 DAUDI SIO MAGUNGA APPLICANT VERSUS THE REPUBLIC RESPONDENT (An application for review of the decision of the Court of Appeal of Tanzania at Tabora) (Kimaro, l.a, Mbarouk, l.a and Massati,l.A.) Dated 5 th day of November, 2009 in Criminal Appeal No. 129 of 2007 RULING OF THE COURT 31st July & 4th August, 2017 MWARIlA, l.a.: In this application, the applicant has moved the Court to review its decision in Criminal Appeals Nos. 128 and 129 of 2007. The appeals arose from the decision of the High Court in Criminal Appeals Nos. 67 and 68 of 2005 originating from Kibondo District Court Civil case No. 22 of 2000. In that case, the applicant and three other persons including Kabalagala Kudumbagula were charged with two counts of abduction contrary to 1 -~~ --~
section 134 of the Penal Code [Cap. 16 R.E. 2002] (the Penal Code) and gang rape contrary to section 131 A of the Penal Code. The trial court acquitted two of the charged persons. It found the applicant and the said Kabalagala Kadumbagula (hereinafter "the 1 st Convict'') not guilty of the two counts but guilty of the offence of rape contrary to section 131 (1) of the Penal Code. They were sentenced to 30 and 40 years imprisonment respectively. Aggrieved by the conviction and sentence, the applicant and the 1 st Convict unsuccessfully appealed to the High Court in the above stated Criminal Appeals. In his decision, the first appellate judge quashed the conviction for the offence of rape, set aside the sentence and substituted thereof a conviction for the charged offence of gang rape. He consequently sentenced each of them to imprisonment for life. They were further aggrieved by the decision of the High Court hence the appeals, the decision of which has given rise to this application for review. From his affidavit, the applicant is in essence, challenging the evidence upon which his conviction was founded. He also complained that the decision was erroneous because the Court did not consider that he was 2
imprisoned for life while he was aged 16 years at the time when the offence was committed. At the hearing of the application, the applicant appeared in person, unrepresented. On its part, the respondent/republic was represented by Mr. Idelphonce Mukandara, learned Senior State Attorney. In his submission, the applicant focused his arguments on the ground that he was wrongly sentenced to life imprisonment because he was, at the material time, aged 16 years. He urged us to review the judgment with a view of awarding a fitting sentence, taking into consideration that he was of the age below eighteen years at the time of his trial and conviction. In response, Mr. Mukandara opposed the application arguing that the grounds raised by the applicant are not tenable because they do not satisfy the conditions stated under Rule 66 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). He submitted that in order to succeed in an application for review, the applicant must establish existence of any of the five conditions stated in that provision. The provision states as follows: "66 (1) The Court may review its judgment or order, but no application for review shall be entertained except on the following grounds- 3
(a) The decision was based on a manifest error on the face of the record resulting in the miscarriage of justice/ or (b) A party was wrongly deprived of an opportunity to be heard,' (c) The Court'sdecisionis a nullity; or (d) The Court had no jurisdiction to entertain the case/ or (e) Thejudgment was procured illegally, or by fraud or perjury. // As stated above, from his affidavit and arguments the applicant challenged firstly, the evidence upon which. his conviction was based and secondly, the sentence. To start with the first ground, we agree with Mr. Mukandara that such ground does not satisfy any of the conditions stated under Rule 66 (1) of the Rules. The purpose of a review is not a re-hearing of an appeal on merit. As observed by the Court in the case of Charles Barnaba v. Republic, Criminal Application No. 13 of 2009 (unreported): 4
''Review is not to challenge the merits of a decision. A review is intended to address irregularities of a decision or proceedings which caused injustice to a party. " Similarly in the case of Karim Kiara v. Republic, Criminal Application No. of 2007 apart from underscoring that position, the Court stated the rationale thereto. It observed as follows: "The law on applications for review is now settled. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected [see Thungabhadra Industries v. Andra Pradesh (1964) S.C 1372 as cited by MULLA/ 14h Ed. Pp 2335-36. In a properly functioning legal system/ litigation must have finali~ thus the latin maxim of debet esse finis litium..., This is a matter of public policy. " [See also the cases of Epson sl» Mi.chael v. The Republic, Civil Application NO.5 of 2009 and Marchy Mhango and 684 Others v. Tanzania Shoe Company Limited and Another, Civil Application No. No. 90 of 1999 (both unreported)] 5
From this legal stance, there is no gainsaying that matters concerning sufficiency or otherwise of evidence cannot be entertained in an application for review because that would amount to rehearing an appeal, the move which is not within the scope of Rule 66 (1) of the Rules. On the second ground, the applicant is in essence complaining that there was a miscarriage of justice because, being a person aged below eighteen years, he was improperly sentenced to life imprisonment. It is true, according to the charge sheet, that the applicant was aged 16 years when the offence was committed. The propriety or otherwise of the sentence was however, one of the grounds which were raised by the applicant and considered by the Court. In the decision which is the subject of this application for review, the Court held as follows in the judgment at page 18 of the record: "Regarding the sentence that was imposed on the second appel/ant, the provisions of section 131 (2) do not make discrimination on age when sentencing the convict The sentence imposed was mandatory for that offence. The Court has no discretion to impose any other sentence. rr 6
We are aware of the amendment to S. 131 of the Penal Code by Act No. 19 of 2007. The section was amended by inter alia, adding thereto sub-section (3) which reads as follows: II (3) Where the commission or. abetting the commission of gang rape involves a person of or under the age of eighteen years the Court shall, in lieu of sentence of imprisonment, impose a sentence of corporal punishment based on the actual role played in the rape." It is unfortunate however, that the amendment came after the commission of the offence and cannot thus, by virtue of S. 73 of the Interpretation of Laws Act [Cap.1 R.E. 2002] come to the aid of the applicant. Section 73 of the said Act provides that:- "73. Where an act constitutes an offence and the penalty for such offence is amended between the time of the commission of such offence and conviction thereof the offender shall unless the contrary intention appears be liable to the penalty prescribed at the time of commission of such offence. " 7
:.. On the basis of the above stated position, we find no merit in the contention that the decision upholding the sentence was based on manifest error causing miscarriage of justice to the applicant. Although the sentence for the offence of gang rape which, admittedly, was harsh for failure to consider appropriate punishment for persons aged under eighteen years was amended, the Court could not, for the above stated reasons, apply it in favour of the applicant. The Court was constrained to uphold the sentence. For the foregoing reasons, this application must fail. In the event, we hereby dismiss it for want of merit. DATED at TABORA 3 rd day of August, 2017. B. M. LUANDA JUSTICE OF APPEAL B. M. K. MMILLA JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL- I certify that this is a true copy of the original. - P.w.~KYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 8